under Article 116 of the UNCLOS and Article 8(3) of the Fish Stocks Agreement
mentioned above. In return, Norway and the Russian Federation grant these third
States and entities fisheries access to their own maritime zones and access to and use
of their ports.
39
As can be inferred from the discussion above, there is at present no international
body mandated by the international community to determine whether or not an
international body qualifies as an RFMO or an RFMA. The competence to make
such determinations lies with States and entities; whether individually or collectively. It is in this context worth noting that FAO’s list of RFBs used to distinguish
RFMO/As from other RFBs.
40 This distinction is likely to have been removed in
order to avoid that being listed as RFMO/As would to some extent amount to
multilateral recognition of the status of these international bodies under
international law.
3.4.3 The CAOF Agreement
The issue of qualifying as an RFMO or an RFMA also exists for the CAOF
Agreement itself. Instead of establishing an intergovernmental organization, the
CAOF Agreement establishes an MOP as its decision-making body.
41 The CAOF
Agreement cannot therefore qualify as the constitutive instrument of an RFMO.
While the Preamble to the CAOF Agreement notes that it is “premature under
current circumstances to establish any additional [RFMO/As] for the high seas
portion of the central Arctic Ocean”, the Agreement’s operative part provides strong
arguments for the view that the CAOF Agreement qualifies as an RFMA within the
meaning of the Fish Stocks Agreement. First of all, the restrictions imposed on
exploratory fishing pursuant to Articles 3(3) and 5(1)(d) of the CAOF Agreement
qualify as ‘conservation and management measures’ pursuant to the definition in
Article 1(1)(b) of the Fish Stocks Agreement. Second, Article 10(2) of the CAOF
Agreement contains the requirement of real interest as the only substantive condition
for accession, which thereby directly implements Article 8(3) of the Fish Stocks
Agreement. Third, and more importantly, in light of, inter alia, its Objective in
Article 2, its qualified and temporary abstention from commercial high seas fishing,
and its Joint Program of Scientific Research and Monitoring, the CAOF Agreement
as a whole should be regarded as a ‘cautious conservation and management measure’
39 See Molenaar (2016), pp. 438–441. For a recent assertion of JNRFC’s competence in the Arctic
Ocean, see the Protocol of the 48th (2018) Annual JNRFC Session, at p. 19.
40 This distinction was still used in the version of the list dated 2 July 2014 used for the publication
by Billé et al. (2016).
41 Art. 5(1) of the CAOF Agreement.
5 Regional Fisheries Management Organizations
91
mentioned above. In return, Norway and the Russian Federation grant these third
States and entities fisheries access to their own maritime zones and access to and use
of their ports.
39
As can be inferred from the discussion above, there is at present no international
body mandated by the international community to determine whether or not an
international body qualifies as an RFMO or an RFMA. The competence to make
such determinations lies with States and entities; whether individually or collectively. It is in this context worth noting that FAO’s list of RFBs used to distinguish
RFMO/As from other RFBs.
40 This distinction is likely to have been removed in
order to avoid that being listed as RFMO/As would to some extent amount to
multilateral recognition of the status of these international bodies under
international law.
3.4.3 The CAOF Agreement
The issue of qualifying as an RFMO or an RFMA also exists for the CAOF
Agreement itself. Instead of establishing an intergovernmental organization, the
CAOF Agreement establishes an MOP as its decision-making body.
41 The CAOF
Agreement cannot therefore qualify as the constitutive instrument of an RFMO.
While the Preamble to the CAOF Agreement notes that it is “premature under
current circumstances to establish any additional [RFMO/As] for the high seas
portion of the central Arctic Ocean”, the Agreement’s operative part provides strong
arguments for the view that the CAOF Agreement qualifies as an RFMA within the
meaning of the Fish Stocks Agreement. First of all, the restrictions imposed on
exploratory fishing pursuant to Articles 3(3) and 5(1)(d) of the CAOF Agreement
qualify as ‘conservation and management measures’ pursuant to the definition in
Article 1(1)(b) of the Fish Stocks Agreement. Second, Article 10(2) of the CAOF
Agreement contains the requirement of real interest as the only substantive condition
for accession, which thereby directly implements Article 8(3) of the Fish Stocks
Agreement. Third, and more importantly, in light of, inter alia, its Objective in
Article 2, its qualified and temporary abstention from commercial high seas fishing,
and its Joint Program of Scientific Research and Monitoring, the CAOF Agreement
as a whole should be regarded as a ‘cautious conservation and management measure’
39 See Molenaar (2016), pp. 438–441. For a recent assertion of JNRFC’s competence in the Arctic
Ocean, see the Protocol of the 48th (2018) Annual JNRFC Session, at p. 19.
40 This distinction was still used in the version of the list dated 2 July 2014 used for the publication
by Billé et al. (2016).
41 Art. 5(1) of the CAOF Agreement.
5 Regional Fisheries Management Organizations
91